NO. COA02-760
Appeal by defendants from order entered 27 March 2002 by Judge
Michael E. Helms in Wilkes County Superior Court. Heard in the
Court of Appeals 12 May 2003.
SMITH, JAMES, ROWLETT & COHEN, L.L.P., by Norman B. Smith, and
L.G. Gordon, Jr., for plaintiff appellee.
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, A Professional Limited
Liability Company, by Allan R. Gitter and Alison R. Bost, for
defendant appellants.
TIMMONS-GOODSON, Judge.
This appeal evolves out of an action filed by Northwestern
National Bank (“Northwestern”) formerly known as Wilkes National
Bank against Western and Southern Life Insurance Company (“Southern
Life”) and George Manos (“Manos”). On or about 20 December 2001,
Northwestern filed a complaint alleging claims of negligence and
breach of contract on the part of Southern Life and its agent,Manos. Southern Life and Manos thereafter filed a joint pre-answer
motion to dismiss Northwestern's complaint, pursuant to North
Carolina Rules of Civil Procedure 12(b)(6), asserting that
Northwestern's claims were barred by the statute of limitations
contained in North Carolina General Statutes § 58-58-120.
Northwestern responded, alleging that North Carolina General
Statutes § 58-58-120 is unconstitutional on equal protection
grounds and raising the defense of equitable estoppel to the
statute of limitations defense. The motion was heard on 11 March
2002. After hearing the evidence and arguments of counsel, the
court denied the motion, based upon the unconstitutionality of
North Carolina General Statutes § 58-58-120. The court specified
in its order “that there is no just cause to delay the defendants'
appeal, since this ruling concerns a substantial right and is
immediately appealable.” Defendants filed notice of appeal on 2
April 2002, and defendant insurance company timely perfected its
appeal.
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At the outset, we must consider the issue of whether this
appeal is properly before this Court. While neither Southern Life
nor Northwestern have raised the issue in their briefs, this Court
may on its own motion address the interlocutory nature of an
appeal.
Abe v. Westview Capital, 130 N.C. App. 332, 334, 502
S.E.2d 879, 881 (1998).
An order is interlocutory if it does not
dispose of the case as to all parties, “but leaves it for further
action by the trial court in order to settle and determine theentire controversy.”
Veazey v. Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950). As a general rule, a party may not
immediately appeal from an interlocutory order.
Howerton v. Grace
Hospital, Inc., 124 N.C. App. 199, 201, 476 S.E.2d 440, 442 (1996).
There are, however, two longstanding exceptions allowing immediate
review of interlocutory orders:
(1) if the trial court has entered a final
judgment as to one or more but fewer than all
of the claims or parties and the trial court
certifies in the judgment, that there is no
just reason to delay the appeal; . . . or (2)
if the delay of an immediate appeal would
affect a substantial right.
Abe, 130 N.C. App. at 334, 502 S.E.2d at 881;
see also N.C. Gen.
Stat. § 1A-1, Rule 54 (b) (2001).
Significantly, this Court has
previously determined that in either instance, “it is the
appellant's burden to present appropriate grounds for this Court's
acceptance of an interlocutory appeal.”
Jeffreys v. Raleigh Oaks
Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).
Furthermore, “it is not the duty of this Court to construct
arguments for or find support for [an] appellant's right to appeal
an interlocutory order.”
Id. at
380, 444 S.E.2d at 254.
We also
note that effective 31 October 2001, Rule 28(b)(4) of the North
Carolina Rules of Appellate Procedure provides that “[w]hen an
appeal is based on Rule 54(b) of the Rules of Civil Procedure,” the
appellant shall include a statement in his brief “that there has
been a final judgment as to one or more but fewer than all of the
claims or parties and that there has been a certification by the
trial court that there is no just reason for delay.” N.C.R. App.P. 28(b)(4) (2001). In interlocutory appeals based upon a
substantial right, the appellant is required to include a statement
in his brief “contain[ing] sufficient facts and argument to support
appellate review on the ground that the challenged order affects a
substantial right.”
Id.
In the case
sub judice, the trial court's attempt to certify
this matter as immediately appealable was not appropriate.
See
McNeil v. Hicks, 111 N.C. App. 262, 264, 431 S.E.2d 868, 869
(1993),
disc. review denied, 335 N.C. 557, 441 S.E.2d 118 (1994)
(noting that Rule 54(b) certification is not dispositive “when the
order appealed from is interlocutory”)
;
see CBP Resources, Inc. v.
Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171, 517 S.E.2d
151, 154 (1999) (“a Rule 54(b) certification is effective to
certify an otherwise interlocutory appeal only if the trial court
has entered a final judgment with regard to a party or a claim in
a case which involves multiple parties or multiple claims[]”);
see
also Henderson v. LeBauer, 101 N.C. App. 255, 264, 399 S.E.2d 142,
147,
disc. review denied, 328 N.C. 731, 404 S.E.2d 868 (1991)
(providing that notwithstanding a trial court's attempt to certify
a matter as immediately appealable, if there is no substantial
right affected and the appeal is interlocutory, that matter is not
immediately appealable)
. The order appealed from, denying
defendants' joint motion to dismiss pursuant to North Carolina
Rules of Civil Procedure section 12(b)(6), is interlocutory as
there has been no final judgment as to any of the parties or
claims.
See O'Neill v. Bank, 40 N.C. App. 227, 231, 252 S.E.2d231, 234 (1979)(“the denial of a Rule 12(b)(6) motion to dismiss is
not a final judgment or order”). The denial of a Rule 12(b)(6)
merely continues the action in the trial court for further
litigation.
Country Club of Johnston County, Inc. v. U.S. Fidelity
and Guar. Co., 135 N.C. App. 159, 164, 519 S.E.2d 540, 544 (1999).
Further, the trial court's assertion that the “ruling concerns
a substantial right,” also fails. Contrary to the mandates of
well-settled case law and North Carolina Rules of Appellate
Procedure 28(b)(4), none of the parties to this appeal have set
forth any argument as to the affectation of a substantial right, so
as to make this otherwise interlocutory matter immediately
appealable. Moreover, after a careful review of the record and
existing legal authority, we perceive no substantial right that
would be affected absent immediate appellate review. This Court
has previously stated that avoidance of a trial, no matter how
tedious or unnecessary, is not a substantial right entitling an
appellant to immediate review.
See Blackwelder v. Dept. of Human
Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780-81 (1983).
Here, the trial court's order denying defendants' joint motion to
dismiss plaintiff's order (albeit on the basis of the alleged
unconstitutionality of N.C. Gen. Stat. § 58-58-120) merely
continues this matter for further litigation in the trial court.
Accordingly, this appeal is dismissed as interlocutory.
Dismissed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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